Analysis: The recurring Cuban claims question, Part 1

U.S. companies and lawyers tend to see Cuba from an America-centric point of view, which is understandable from a cultural standpoint. As a “bi-cultural” lawyer — I was a civil law attorney before I became a Florida Bar Member over 30 years ago — I have experienced first-hand the consequences of this “mistake” in many countries.

In Cuba it is magnified by the fact that most Americans, businessmen and lawyers included, have been exposed to a heavy dose of biased and misleading propaganda for almost six decades now. This is slowly changing for the better, due to the growing number of Americans now visiting the island for the first time in half a century, enabling them to make their own assessment of what Cuba really is, warts — and there are many — and all.

I was recently asked which was the most frequent reason people sought my advice on Cuba. Unfortunately, the answer to that question has not changed one bit for over 20 years: they want to see how they can plan ahead to get back the property their families owned before the Revolution came to power on Jan. 1, 1959.

I say unfortunately because these prospective “clients” are victims of the same America-centric bias, especially in their belief that sorting out who owns what in Cuba in the future will be played out in U.S. courts and under our U.S. legal system. In my view, this is nothing more than a delusion, which is why I refuse to take their money. I don’t have any clients with this type of concern or goal, unless they understand that the only venue where they can expect to find satisfaction for their claim would be a Cuban court, ruling under Cuba’s laws. I have not found one such client yet.

World Wide Title has been around since well before the end of the last century. I set it up to give support to U.S. title insurance underwriters and their clients. At the beginning, I worked with First American, arguably the largest title insurer nationally, and later with The Fund in Florida. They wanted to venture into foreign lands — mostly Mexico, but anywhere else as well, including places like Moorea, in French Polynesia — to cover purchases of tourist resorts, maquiladoras, and even individual vacation homes abroad.

Back then, Cuba was an afterthought. However, since I was born in Cuba and knew well the very high quality of land title registration before Castro, I kept nurturing that knowledge through frequent contact with the Cuban legal system and my colleagues in the island. With the advent of Barack Obama and his dramatic change of U.S.–Cuba relationships, I decided to turn WWTI into an “all Cuba, all the time” station.

That was more than seven years ago, and the waiting, further complicated by what the Bee Gees might call “The New York Mining Disaster of Nov. 8th, 2016”, has kept me and my company — both U.S. subjects constrained by the insanity of Helms Burton and its progeny — in a kind of trance, with zero productivity. That’s since, by choice, I no longer have, say, Mexico to lean on. I believe that as long as the embargo remains in place, all the changes to our sanctions rules will remain more cosmetic than anything changing in Cuba; so we wait on…

With few “clients”, since I refuse to be engaged by the kind of “client” I referred to above, and do not feel free — in this land of the free — to openly help (and charge, of course) those who simply want to explore the possibility of investing in real property in Cuba and under Cuba’s present laws, I cannot but laugh when pro-embargo lobbyists claim people like me are making a killing, thanks to the “Obama Revolution” in U.S.– Cuba relationships.

Consultations I get more than I can handle — since I write frequently on Cuban legal topics — and I often refer people to lawyers in Cuba, where I have many good friends in my profession. But after more than 40 years dealing with international law, I know well that the law (any law) is only worth what it projects in terms of certainty, and we Americans have foolishly politicized the U.S.-Cuba topic (namely, what Americans can and cannot do vis-a-vis Cuba) to an extent it can only be described as a quagmire of uncertainty. And this will not change until the embargo is gone.

The hopes and goals of the type of Cuban claims client I usually forego are tainted by that quagmire of uncertainty, but also by the long list of misconceptions around the topic of pre-revolutionary titles and what their true value may be.

Take, for example, the concerns of a U.S. company interested in setting up an office or a store in Cuba, which is apparently authorized under the last set of Commerce and Treasury department regulations under Obama. I for one, with the embargo sword still hanging over our heads, would not recommend it.

In their America-centric zeal for undertaking the same due diligence steps they take when exploring such a venture in any U.S. city, the U.S. company and its U.S. lawyers may want to mitigate potential lawsuits by Cuban or American “owners” who might sue the Cuba-bound venture on grounds of trafficking with confiscated property.

From this U.S. perspective — and in the United States anyone can sue virtually on a whim — it may seem crucial to be able to search back as far as one can into the past history of the land parcel in question. Will the pre-revolutionary titles be available for inspection, I am frequently asked in consultation. If so, where?

The old titles may be available, or not… If they are available, they should be found in the Registro Público de la Propiedad Inmueble. Or maybe somewhere else…

This uncertainty or ambiguity is due to the fact that under Cuba’s laws, what appears as crucial from an America-centric perspective can be mostly irrelevant.

Let us try to look at this from a Cuban perspective.

My understanding is that most people who stayed in Cuba were able to keep the homes where they actually lived in. In those cases, since there should have been no brusque interruption in the title chain in question, the old pre-revolutionary titles — the evidence of their recordation, that is — should be accessible at the same Registro Público where they were recorded.

Even if that recording office no longer exists and the excellent land registry system that Cuba had inherited from Spain was totally depleted in the early years of the Revolution, and is now being revamped, the title chain leading to the present owner of record should include the old pre-revolutionary titles and be available for inspection.

But, of course, those who stayed will seldom be among those prospective clients I normally reject. What happened to the old title documents and the corresponding recording entries of those Cubans who left and whose property was expropriated, confiscated or otherwise taken by the Revolution?

Under Cuban law, the title chain to those land parcels does not extend beyond the legislative or administrative measure by which they were taken. So when the process of revamping or recovering Cuba’s Registro de la Propiedad Inmueble was undertaken, those confiscated or expropriated parcels were recorded (immatriculadas is the term in legalese) on the basis of those revolutionary government measures whereby they were taken.

In our American legal parlance, those governmental measures became the “root of title”, that is, the point beyond which there is no need to search or inquire. Therefore, the old titles are not likely to be found in the recording office where the present owner’s title is recorded.

In some cases, the old title documents may be found archived elsewhere and a number of people have approached me with copies they have obtained through someone in Cuba. Are these copies — some even carrying a certification from the office where they are kept — worth the expense of obtaining it?

The answer will be found in Part 2.

José Manuel Pallí is president of Miami-based World Wide Title. He can be reached a jpalli@wwti.net.